Reconsideration And Reconstruction Of Qualification Penalty

The Qualification Penalty of our country mainly includes Deprivation of Political Rights, Deportation and Deprivation of Military Rank. There are a lot of imperfect respects in the theory circle and judicial practices, which are contrary to the development of the society of our country and the trend of word penalty, hinder the full play of the penalty function of Qualification Penalty and scientific process of China's penalty system, so this text attempts to put forward some suggestions and views on perfection of Qualification Penalty in view of the legal meaning.The first part mainly describes the nature of Qualification Penalty of our country. Though the Qualification Penalty of our country includes Deprivation of Political Rights, Deportation and Deprivation of Military Rank, because the applicable scope of the latter two is limited, it is mainly Deprivation of Political Rights that determines the nature of Qualification Penalty of our country. Reviewing the regulation of Deprivation of Political Rights in Criminal law, we can find that its political meaning has far exceeded the legal meaning and the nature of Qualification Penalty has been misplaced. Paces of historical development and perfection of Qualification Penalty system ask us to understand it in view of the legal meaning. Through the analyses of the punishment theory of the retribution and educational theory in the history of Qualification Penalty, we can draw the conclusion, Qualification Penalty is the penalty that deprive the Criminal's qualification of engaging in a certain activity and its main function is to limit the ability of recommitting, which is the essence and the original nature of Qualification Penalty.After redefining Qualification Penalty, from the second part, this text mainly begins to focus on discussions of reconstructing Qualification Penalty of our country. Among them, the second, third and the fourth part are the key contents. The second part summarizes some questions of Article 54 in Criminal law existing in the theory and practices. First of all, through the analyses of "political right "in the theory of constitutional government and comparison with our constitution, we can draw the conclusion that the definition and the content of the political right in Article 54 is too extensive. Secondly,this regulation of Criminal law has produced a lot of contradictions in actual life. It is very difficult to implement and may bring the passive social effect on the national problem and the religious question .Again, comparing with the basic human rights theory and educational punishment theory in the world, the regulation of Article 54 in Crime law structures the state policies mostly from the restraining the citizen rights angle and does not meet the needs of the social development.Just because of so many questions in the theories and practices, the third part is about the perfection of Deprivation of Political Rights. It mainly includes two respects: the name and the content; the suitable targets. As regards the content and the name, from the analyses of every section, first, I think the content about depriving the right to vote and stand for election should be kept in the system of Qualification Penalty. Second, because there are a great deal of obstacles of deprivation of the six rights of freedom in theory, in law and in practices, so I think, it is inevitable to remove this content from the range of Qualification Penalty of our country. Third, about deprivation the rights to hold a position in a state organ, through analyzing different scholars' ideas about how to confirm the name of this content, I define this content as deprivation the right to hold state organs functionaries and I think it should still be kept in the system of Qualification Penalty. Fourth, seeing that it is unnecessary to list the state-owned corporation only from the state-owned enterprise, I propose that it can be renamed as deprivation the right to hold a leading position in state-owned enterprise, institution and people's organization. Fifth, about the name, in view of the legal meaning, it can be changed into restriction of civil rights. So the penalty about depriving of political rights is renamed as "restriction of civil rights", its content is:(i)Deprivation the right to vote and stand for election; (ii)Deprivation the right to hold state organs functionaries; (iii)Deprivation the right to hold a leading position in any state-owned enterprise, institution and people's organization.As far as the suitable targets are concerned, though the regulations of Criminal law have many rational places, does not totally coordinate with the restriction of common rights in several concrete respects, still needs to be perfect. First, because the standard of how to identify the criminal who commits the crime of seriously undermining public order is not clear, so I propose that the crime should be limitedin being sentenced the fixed-term imprisonment of more than 10 years, in order to benefit the execution of justice practices. Second, through the analyses of various kinds of views, I think, it is unnecessary for the criminal who is carried out to death penalty immediately to deprive political rights for life. Third, for the standards about the charge that can be applicable to depriving of political rights exclusively are indeterminate, I advise legislators to set up unified standard.The fourth part of this text is mainly to put forward some imaginations about setting up new kinds of Qualification Penalty. At first, considering perfecting the system of penalty of our country, the development of the realistic social and the trend of international light punishment, it is very essential to set up new kinds of Qualification Penalty. Meanwhile," the legislators of our country and the theory circle have been paying close attention to the content all the time, so the theory condition has already been ripe too. Secondly, we can consider it from two respects, one is depriving specific job qualification punishment to the natural person and the other is suitable to the unit including suspending business to standard, restraining on the operational activities and canceling by force. Finally, I probe into the penalty necessity on the premise of already having an administrative penalty method and I suggest that the suitable condition of penalty should be controlled strictly.The fifth part of the text is about Deprivation of Military Rank. It is a kind of accessory penalty of our country. Seeing that the nature of it is the emeritus punishment, I think it is not in accord with legislative trend to keep it in Qualification Penalty system and it should be deleted.In the sixth part I propose to set up the suitable systems of Qualification Penally. Mainly including: Deductions and exemptions system, the system of eliminating previous conviction and Discrete system. These systems can benefit avoiding the penalty surplus question and improving the full play of the function of Qualification Penalty.Conclusion: The legislation of Qualification Penalty can not be accomplished in one move. A lot of concrete problems will be explored in practices constantly. This text, in view of the legal meaning, redefines the nature of Qualification Penalty of our country, and puts forward some suggestions and views on how to reconstruct...